The Next Right-to-Life Battleground

ByDavid L. Kirp, David L. Kirp, professor of public policy at the University of California, Berkeley, writes frequently on social issues.December 13, 1989

GINNY GREEN never fancied herself a crusader, just someone who liked working on the battery assembly line of Johnson Controls' plant in Bennington, Vt. It was dirty work, and hard; but it was more interesting than being a clerk, and it paid better. Then one day in August 1982, she was out of work - a casualty of the company's new fetal-protection policy. Recently, a federal appeals court upheld Johnson Controls' policy of barring fertile women from jobs where, because of high concentrations of lead or other toxics, there's a potential risk to an unborn child.

This dispute, likely to wind up in the Supreme Court, pits the rights of the fetus against equal-employment rights for women. It has given a new cause to the right-to-life movement - concern for those not-yet-conceived fetuses. And it has mobilized civil rights groups, who claim that the policy amounts to sex discrimination.

``Probably the most important sex discrimination case in any court'' in 25 years, the appeals court called it. But if the judges got the question right, they got the answer wrong.

To the court, Johnson Controls' policy wasn't discrimination but a way of preventing mental and physical harm to children down the road. Lead can harm the central nervous system of the developing fetus; that potentially means retardation.

That's not how Ginny Green sees it. She is in her 40s, with a teenage daughter, and no plans for any more children. No matter. The company won't take a woman's word that she won't have another child. Mrs. Green was made a ``respirator sanitizer,'' a glorified laundress. She became the butt of fertility jokes from Archie Bunkers on the job.

While her new job gave her the same base pay, the production line is where the overtime dollars are to be earned. And Green isn't alone. Her friend Elsie Nason, also in her 40s, went from a production job to being a janitor. Now she is mopping floors, waiting for menopause.

If toxicity poses a serious danger to the fetus, and there's nothing a plant can do about it, protection makes sense. But those are two big ifs. For the women who brought the landmark class-action lawsuit, this ``protective'' policy - like the turn-of-the-century laws that required fainting couches in women's rooms and kept them from working in mines - has actually protected them right out of work. And for no good reason.

Many Americans face the same toxic risks every day. It's common to find as much lead in the air on city streets as on the assembly line. Policemen and bus drivers routinely have lead levels in their blood higher than Johnson's workers. If there's a problem, it's far bigger than the lead used in making batteries.

No one knows for sure whether this exposure is really the health hazard the company claims. But if Johnson Controls' policy becomes the law of the land, as the dissenting judge pointed out, women could be denied a chance to compete for 20 million industrial jobs where there's potential toxic risk.

Why, in this toxic cesspit, are women singled out? Why aren't those men on the line being turned into janitors and laundresses? Because companies fear lawsuits brought on behalf of the fetuses; and because potentially pregnant women look more vulnerable.

The old double standard is alive and well in the new-age work force. There has been little research on toxics and the male reproductive system, but where there's evidence of a threat, safety policies change: The toxics are banned or new safeguards rushed into place. Meanwhile, rather than lowering lead levels on the line, companies give women like Ginny Green the chop. There's no talk of transfers on the assembly lines in the Silicon Valley electronics firms, where women predominate - despite the toxic dangers lurking in that work.

The toxic rules are defended by industry as protecting vulnerable women against their own mercenary impulses. But only when they're expendable do women get on-the-job protection.

Just this summer, seven years after she was transferred, Ginny Green had a chance to go back to the production line at Johnson Controls. She had reached menopause, and so, according to company policy, could work again in areas of the plant where lead levels were high. But she had lost her seniority and would have to go back to the second shift. Not wanting to leave her teenage daughter home alone at night, she declined.

``We're going to keep fighting,'' Green says. ``This isn't about money. This is about discrimination. We're fighting for the gals who can't get good jobs here now.''